IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012150 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant request correction of her records to show she has enough qualifying years for entitlement to a nonregular retirement.

2.  The applicant states:

	a.  In August 1992, she was discharged under the Fiscal Year 1992 (FY92) Enlisted Voluntary Early Transition Program with special separation benefits (SSB) in the gross amount of $71, 574.93.  However, she was not told that if she filed a claim [with the Department of Veterans Affairs (VA)] that monies she received under the SSB would be recouped.

	b.  Neither was she informed that in order to retire with pay, she would have to serve in an active U.S. Army Reserve (USAR) unit rather than in an inactive Reserve Component (RC) unit.  At the transition station, she was simply told that she did not have to do anything, that in the RC she could retire and receive her retirement pay.  Therefore, she requests an exception to policy (ETP) for special consideration for qualifying years of service in the Ready Reserve because she was misinformed through no willful misconduct of her own.  She requests the ETP so she may retire with dignity and receive all the benefits due her for the 20 years she served her country.

	c.  She filed a claim with the VA and received a 20 percent (%) disability rating for Raynaud's Phenomenon because of frostbite she had when she attended Drill Sergeant School.  Since the amount of her SSB is being recouped, her disability compensation of 20% is being taken each month to repay the gross amount of the SSB although she received that amount minus taxes.  At the same time the option for SSB was available, she was scheduled to deploy to Korea and her doctor told her he would medically retire her.  She decided to take the SSB option rather than return to Korea and further inhibit her health.  She did not realize she could have requested a medical retirement. 

	d.  When she applied for nonregular retirement pay, she was told that in accordance with Title 10, U.S. Code (USC), sections 12731-12737, a Reserve Soldier must have completed a minimum of 20 qualifying years of service; the last 8 years of which must have been in a RC.  Service in an inactive Reserve section such as the Retired Reserve was not creditable for retirement purposes.  Although she completed 20 years and 1 day of qualifying service for retirement, her last 8 qualifying years were in the Regular Army (RA) and not in a Reserve status.  She was transferred to the RC and then the Retired Reserve before she could reach the minimum time for retirement with pay.

3.  The applicant provides 

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a memorandum
* Army Human Resource Command (AHRC) Form 249-E (Chronological Statement of Retirement Points)
* DD Form 108 (Application for Retired Pay Benefits), dated 26 June 2013
* DD Form 2656 (Data for Payment of Retired Personnel), dated 1 July 2013
* a letter from the VA
* a marriage certificate

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on XX April 1954.  Having had prior active service, she enlisted in the RA on 19 July 1978.  She served continuously on active duty and was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 August 1991.  She was assigned to the 551st Signal Battalion, 15th Signal Brigade, Fort Gordon, GA.

2.  In April 1992, she requested voluntary separation under the FY92 Enlisted Voluntary Early Transition Program with the SSB option.  On 12 May 1992, her request was approved with a separation date of 1 August 1992.

3.  Orders 169-503, dated 17 June 1992, issued by Headquarters, U.S. Army Signal Center and Fort Gordon, assigned her to the U.S. Army Transition Point, Fort Gordon with a reporting date and discharge date of 1 August 1992.  These orders stated Soldiers who receive SSB based on service in the Armed Forces, and subsequently qualify under Title 10, USC or Title 14, USC for retired or retainer pay shall have deducted an amount equal to the total amount of SSB pay not previously recouped.  

4.  Her record contains a Transition Counseling Acknowledgement Checklist, dated 6 July 1992, wherein it shows she received mandatory counseling on that date on the procedures for and the advantages of affiliating with the Selected Reserve.  

5.  She was honorably discharged on 1 August 1992 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 16-8, FY92 Enlisted Voluntary Early Transition Program and she was transferred to the USAR Control Group (Individual Ready Reserve (IRR)).  

6.  The DD Form 214 she was issued for this period of service shows she completed 14 years and 27 days of active service during this period of service and had 5 years, 9 months, and 13 years of prior active service for a total of 19 years, 10 months, and 8 days of active service.  Item 18 (Remarks) of this DD Form 214 shows she was authorized an SSB payment in the gross amount of $71,574.93.

7.  There is no evidence in her available record, and she did not provide any evidence, that shows while serving on active duty that she was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented her from performing her assigned duties, was found to be unfitting, or required referral to an medical evaluation board (MEB) or physical evaluation board (PEB).  There is no evidence that shows while serving on active duty that she ever received a permanent profile of "3" that would require referral to an MEB/PEB. 

8.  The applicant provides:

	a.  A letter from the VA, dated 7 December 1992, wherein it stated her claim for disability compensation was approved for the service-connected disability of Raynaud's Disease and was rated at 20%.  The award was subject to the recoupment of $71,574.93 which represented the separation pay she received.  When the amount was recovered, full compensation would be paid.

	b.  A letter from the USAR Personnel Command, dated 7 May 2014, wherein it stated that to be eligible for retired pay at age 60 a Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a RC.  Service in an inactive Reserve section was not creditable for retirement purposes.  A Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement (emphasis added).  An audit of her records showed she completed 20 years and 1 day of qualifying service; however, the last 8 years of the qualifying service was in the RA and not in a reserve status and did not count toward the RC requirement.  Accordingly, she was ineligible to receive [nonregular] retired pay.

	c.  An AHRC Form 249-E, dated 7 May 2014, wherein it shows the applicant had 19 years, 10 months, and 8 days of qualifying service for retirement in the RA from 29 September 1972 to 1 August 1992 and she was discharged from the USAR Control Group on 9 October 1997.  This form also shows she had 1 month and 23 days of qualifying service for retirement in the USAR from 2 August 1992 to 24 September 1992.  It is unclear why the form shows she was credited with 1 month and 23 days of qualifying service during this period as it shows she was only credited with 2 membership points and 2 total points creditable from 2 August 1992 to 24 September 1992.

9.  Military Personnel (MILPER) Message (MSG) Number 92-85 contained the implementing instructions for the FY92 Enlisted Voluntary Early Transition Program.  It stated, in part, that Soldiers approved for separation with a SSB would be paid a lump sum benefit equal to 15% of the basic monthly pay received on the date of the Soldier’s separation, multiplied by 12 and multiplied again by the Soldier’s years in service.  

10.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  These incentive programs were designed to induce members of the Armed Forces to leave the military voluntarily.  Under both of the programs, the Voluntary Separation Incentive (VSI) and the SSB, qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary at the time of separation and on years of service.  In order to qualify, a Soldier must have served on active duty for more than 6 but less than 20 years and have served at least 5 years of continuous active duty immediately preceding the date of separation. 

11.  Army Regulation 601-280 (Army Retention Program), chapter 7, in effect at the time, stated that Soldiers without a Military Service Obligation enlisting or transferring from active duty into the U.S. Army Reserve may be assigned to the IRR for 3, 4, 5, 6, 7, or 8 years.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

14.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), in effect at the time, stated that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a RC Soldier.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant voluntarily requested separation from active duty under the SSB option of the FY92 Voluntary Early Transition Program.  Her request was approved and she was discharged from active duty on 1 August 1992 with 19 years, 10 months, and 8 days of active Federal service and entitlement under SSB to a lump sum payment based on her years of service and pay grade.  She was transferred to the USAR Control Group on 2 August 1992.

2.  Notwithstanding her contention that she was misinformed about the requirements for a nonregular retirement, the evidence of record shows she received mandatory counseling on 6 July 1992 on the procedures for and the advantages of affiliating with the Selected Reserve.  It is presumed that mandatory counseling would have included that to be eligible for nonregular retirement she would be required to complete a minimum of 20 years of qualifying service with the last 8 years of qualifying service as a RC Soldier and that she must have earned at least 50 retirement points per year for that service to be creditable for retirement.  Regardless, as she was discharged from the USAR Control Group on 9 October 1997 and did not have 8 years of USAR creditable service for retirement, she does not meet the requirements for entitlement to a nonregular retirement.

3.  In addition, the evidence of record does not show, and she did not provide any evidence, that shows, that she was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented her from performing her assigned duties, was found to be unfitting, required referral to an MEB/PEB, or that she was eligible to request a medical retirement.. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  With respect to the recoupment by the VA of her separation pay from her disability compensation, this is a VA issue and is not within the purview of this Board.  The applicant should address that issue with the VA, if she so desires. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20140012150





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012150



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1